[CCWG-ACCT] Attempt to summarize discussion regarding Mission and Contract

[Malcolm Hutty]

Dear Becky,

According to our charter, the following definitions are used:
a) Full Consensus - a position where no minority disagrees; identified
by an absence of objection
b) Consensus – a position where a small minority disagrees, but most agree

See https://community.icann.org/display/acctcrosscomm/Charter


I am writing to supply evidence that two of your consensus level
estimations are not consistent with these standards.

I am writing to disagree with your estimation of the level of consensus
on certain points.

> o   To the extent that registry operators voluntarily assume obligations
> with respect to registry operations as part of the application process,
> ICANN should have the authority to enforce those commitments. 
> 
>   /NOTE:  There is not “full consensus” on this position/.

To the extent that this principle as stated would override the principle
that ICANN should not seek to regulate the content of web sites or the
general business practices of domain registrants (parties who have no
privity of contract with ICANN), I believe there is widespread
disagreement with your proposal in evidence in the public comment record.

Please find attached 11 comment extracts from the first public comment
period. I have chosen these 11 comments as being examples that clearly
and unequivocally expresses opposition to your proposed principle, to
the extent stated above. These comments come from a broad range of
stakeholders, including a Congressional Resolution.

I therefore content that the correct assessment is that there is *no
consensus* in favour of this principle.

> *We do not appear to have consensus on the following concept*:  /Without
> in any way limiting the foregoing absolute prohibition, ICANN shall not
> regulate services that use the Internet's unique identifiers, or the
> content that such services carry or provide./

The same attached comments express clear support for this concept, and
in many cases explicit endorsement of the wording.

The only criticism of it in the public comment was from the intellectual
property stakeholders spread across BC/IPC.

Since there is both broadly based support and the only objections to
this principle come from a narrow segment of the community, I contend
that the proper assessment is that this principle *has achieved
consensus, stopping short of full consensus*.

> Coordinating development, implementation, and enforcement of Consensus Policy, as defined by Specification 1 of the New gTLD Registry Agreement and Specification 4 of the 2013 Registrar Accreditation Agreement, is within ICANN’s Mission.

Becky, I'm afraid the only person who keeps coming back to Specification
1/Spec 4 as an adequate statement of the bounds of the Mission is you.
And whenever you do so, it is challenged.

I don't think you have any basis whatsoever for claiming that this group
as a whole has selected these documents as its view of the best or most
appropriate way to define or describe the parameters of the Mission, let
alone the best mechanism for recording those parameters.

I contend that the text in the first and second public comment rounds
has a much better claim to represent a consensus view of how to draw the
bounds of ICANN's Mission in this area. Unlike those demanding further
changes, I offer evidence in support of this claim, in the form of the
attached document.

It seems to me deeply regretable and contrary to our declared aims of
transparency and inclusion to disregard both the general tenor and
explicit recommendations of the public comment, and to allow vitally
important last minute changes to be pushed through at the behest of a
small group merely because that group has greater stamina for conducting
a war of attrition.

Removing the widely popular restriction on ICANN's Mission would
dishonour the public comment. For that reason, this group really ought
not to support your proposal. Public comment replies should matter.

There being no new proposal that has reached consensus and that still
honours the public comment response, the only proper course is to
proceed with the existing text. Those few that disagree may be invited
submit a minority statement, should they wish to do so.


Kind Regards,

Malcolm.

-- 
            Malcolm Hutty | tel: +44 20 7645 3523
   Head of Public Affairs | Read the LINX Public Affairs blog
 London Internet Exchange | http://publicaffairs.linx.net/

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